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Friday, October 31, 2014

Confusion about one word, "knowingly," might have caused an Alabama jury yesterday to acquit State Rep. Barry Moore (R-Enterprise) on all four counts against him.

Moore faced two counts of perjury and two counts of providing false statements, in the first trial to grow from a Lee County grand-jury investigation of State House corruption. That Moore was charged with two distinct crimes, and the relevant statutes treat the "knowingly" element in radically different ways, probably created enough confusion to give Moore not-guilty verdicts on all four counts.

In retrospect, prosecutors probably would have been better off to charge Moore only with perjury. That's because the second charge, providing false statements to any matter under investigation, probably caused the confusion that let Moore go free.

If jurors were confused, they were not alone. Some members of the press also appeared to be confused. Consider this from an al.com report on Wednesday about the trial:

Moore testified today that he did not willingly or knowingly tell the grand jury anything that was untrue, a required element for the charges.

We can find only one problem with that sentence--it isn't true; in fact, it's a flatly inaccurate statement of the law.

All reporter Mike Cason had to do was check the indictment to get an accurate read on the law. Apparently he didn't do that. The indictment correctly states that "knowingly" was an element of the charge under Counts One and Three (providing false statements), but it was not an element under Counts Two and Four (perjury).

A quick look at the relevant statutes shows a difference in the crimes. This is from the key portion of Code of Alabama 36-15-62.1:

Section 36-15-62.1

Providing false statements relating to any matter under investigation; penalties.

(a) Any person who knowingly commits any of the following in any matter under investigation by the Attorney General, or a prosecutor or investigator of his or her office, upon conviction shall be guilty of a Class C felony.

You can see that the word "knowingly" plays a prominent role in describing the offense. Now. let's take a look at the key section of Code of 13A-10-101:

Section 13A-10-101

Perjury in the first degree.

(a) A person commits the crime of perjury in the first degree when in any official proceeding he swears falsely and his false statement is material to the proceeding in which it is made.

(b) Perjury in the first degree is a Class C felony.

You can see that the word "knowingly," contrary to what al.com reported, is not an element of perjury. The offense is straightforward--you make a materially false statement in an official proceeding, and you have committed perjury. It doesn't matter whether the statement was knowingly
made or not.

That's important because Moore admitted on the stand that he gave at least one answer that was false related to a phone call with Josh Pipken, who wound up being Moore's primary opponent. From the al.com report:

Prosecutors say the recordings show that Moore was not truthful with the grand jury. Defense attorneys disputed that.

Moore acknowledged during his testimony today that one answer he gave during his testimony was wrong, but said it was because he didn't fully remember the phone call with Pipkin from seven months earlier.

Moore then proceeded to tell the jury that he did not willingly or knowingly tell the grand jury anything that was untrue. His reference to the grand jury means he was referring specifically to the perjury counts; the providing false statements counts involve statements made to investigators for the attorney general's office.

In other words, Moore told jurors that he did not knowingly commit perjury. But "knowingly" is not an element of the offense; it only applies to the false statements counts. And Moore's own words show he did make a materially false statement in an official proceeding.

What does it all mean? Moore probably presented a valid defense to the false statements charges, and the not-guilty verdicts on those might be proper. But based on our review of the relevant law and press reports on this week's trial, Moore offered no legitimate defense to the perjury charges. In fact, he appears he admitted to committing perjury in at least one instance.

Wednesday, October 29, 2014

The most trusted organization in broadcast journalism produced a report last night on Mark Fuller, the Alabama federal judge who was charged in August with beating his wife in an Atlanta hotel room. CBS Evening Newswith Scott Pelley relied in part on nontraditional news sources in preparing the Fuller story.

How do we know? Legal Schnauzer was one of those sources. It's a classic example of how news gathering has changed, with the online press taking on more and more of a trusted role. It also is an example of a story that probably never would have reached the attention of CBS News, without aggressive reporting from nontraditional sources in the early stages.

Bianca Brosh, an assistant producer for CBS News, contacted me on October 14, and I posted that day on my Facebook page that a story about the Fuller case was in the works at the network. Brosh specifically asked about using a photograph of Fuller, taken by Phil Fleming of Montgomery, Alabama, that had run on my blog.

Blog statistics for Legal Schnauzer showed several visits from CBS Evening News to research our posts on the Fuller story. I'm guessing the network also checked out the reporting of Alabama attorney Donald Watkins, who has produced a number of important stories on his Facebook page about the Fuller case.

From the CBS story, written by Vicente Arenas:

Outrage over domestic violence reached a new high after revelations involving NFL players. Now, public condemnation is expanding with a call for justice involving a federal judge.

Mark Fuller of Alabama may have his criminal record cleared, despite evidence on a disturbing tape. . . .

The caller is the wife of Mark Fuller, a prominent federal judge who has presided over some of Alabama's biggest cases.

Prosecutors filed a misdemeanor battery charge against Fuller. But the case did not come to national attention until the video surfaced of NFL star Ray Rice knocking out his then-fiancee, later wife, Janay in a casino hotel elevator.

Now Fuller has been relieved of all his pending cases, and there are calls for his resignation.

Based on at least one published report, the answer to the Garrison question seems to be yes--and that's because of an alleged "secret" involving the attorney general's office, which is conducting the Lee County probe.

How could the Garrison divorce case have ties to a criminal matter? An August 18 article by Bill Britt at Alabama Political Reporter (APR) shines light on that question.

Britt reports that Kevin Turner, chief deputy to Attorney General Luther Strange, has tried to derail the Lee County investigation by having Special Prosecutor Matt Hart removed from the case. Turner filed what Britt describes as a "bogus" personal complaint in order to have Hart fired or removed from the white-collar crime division. The actions in Britt's report, if proven, come close to the definition of obstruction of justice (in federal law enforcement) or obstructing governmental services (at the state level).

What would cause Kevin Turner to be so bold, desperate, and perhaps stupid? Britt suggests it's because Turner holds a "secret" over his boss' head. From the Britt article:

Inside the Attorney General’s Office, the effort to sabotage the Grand Jury, by eliminating Hart, is thought to be the work of Strange’s closest ally, Turner.

The seemly unbreakable bond between Strange and Turner is rumored to be based on more scandalous motives, and not mere loyalty. As Strange’s driver and body man during the 2010 campaign for AG, there is speculation that Turner holds a dirty secret over his boss' head. Whatever the reason may be for Strange’s particular loyalty to Turner, there are more than a few questions raised by Turner’s recent actions against Hart.

Where does Jessica Medeiros Garrison fit into this picture? She managed Luther Strange's 2010 campaign, which would have more or less made her Kevin Turner's supervisor at the time. Any "dirty secret" that Kevin Turner has on Luther Strange, probably would be known to Garrison.

What's the nature of this secret? Is it personal, professional, political, financial--a combination of all the above? We don't know, but Garrison's divorce case ended in October 2009, and a related child-custody case went into 2011--all in the general time frame of the 2010 campaign for attorney general.

Could the sealed Garrison divorce file include information about the secret? It certainly could, and if so, that means it's relevant to the Lee County investigation--and Kevin Turner's actions that appear to be unethical (at best) and maybe criminal (at worst).

While citizens await news of more possible arrests in the Lee County case, they should demand that Jessica Medeiros Garrison's divorce file be unsealed.

Ironically, the article appears as we marked the first anniversary last Thursday of my unlawful arrest in Shelby County, Alabama, making me the only journalist in the western hemisphere to be incarcerated in 2013. More importantly, the recognition comes as we finally are seeing signs of progress against corruption in Alabama, thanks to an ongoing grand-jury investigation in Lee County.

Court documents indicate prosecutors are aiming even higher, targeting the Riley political machine headed by former GOP governor Bob Riley (2002-2010) and two of his children--Birmingham attorneys Rob Riley and Minda Riley Campbell. Hubbard is a long-time Riley ally, and the Hubbard indictment includes counts that involve Bob Riley and Minda Riley Campbell. Published reports have shown that Rob Riley was involved with Hubbard in funneling $100,000 in Poarch Creek Indian gaming money to Citizens for a Better Alabama, a group supposedly opposed to gaming.

The piece on internet freedom includes an article by India-based reporter Jerin Mathew, plus an infographic spotlighting each of the seven featured individuals (see link below). Writes Mathew:

The internet is currently a crucial medium of communication. It is being used by people to express their ideas to an audience spread across the globe.

However, certain authoritarian states have introduced measures to filter, monitor and manipulate the internet, as they fear the power of new technologies. Activists have successfully used the medium to advocate political, social and economic reform and mobilise people for the cause.

Certain people have come out to question governments' interference in the cyber world and their snooping on the online activities of people. Some people say they are heroes of democracy, while some others label them as enemies of state security.

Thursday, October 23, 2014

Today marks one year since I was beaten inside my own home, Maced in the face, dragged out of my home, dumped in the backseat of a squad car, and incarcerated in an Alabama jail for five months--all because I write this blog about judicial and political wrongdoing, in a state that ranks No. 6 for corruption, according to a recent survey.

According to the indictment against Hubbard, former Governor Bob Riley and his daughter, Minda Riley Campbell, are among a number of prominent political and business figures to cut apparently corrupt deals that allowed Hubbard to use his public office for personal gain. Published reports have shown that Rob Riley, the former governor's son, was involved with Hubbard in funneling $100,000 in Poarch Creek Indian gaming money to Citizens for a Better Alabama, a group supposedly opposed to gaming.

Where's the irony? Rob Riley clearly orchestrated my arrest, and now we know that one of his closest allies, Mike Hubbard, faces 23 counts of criminally abusing the public trust.

If Rob Riley's lawsuit was not about defamation, what was it about? I would suggest it was about intimidation of an online journalist the Riley Machine could not control. In the process, Team Riley engaged in gross civil wrongs and might well have stepped into criminal territory.

What specifically drove Rob Riley to file his lawsuit, and what was the real motivation behind it?

Wednesday, October 22, 2014

Indicted Alabama House Speaker Mike Hubbard (R-Auburn) has said he's done nothing wrong during his time as a public official. In a press conference yesterday, Hubbard said the attorney general's office is trying to make it a crime to own a business while serving in a public capacity.

Those two comments indicate Hubbard is clueless about the legal challenges he faces--or he intentionally is trying to deceive the public.

The issue in any criminal case is not whether the accused thinks he has done something wrong; it's whether he has violated the law.

In Hubbard's defense, white-collar statutes often are written in such a murky fashion that hardly anyone can tell the difference between legal and illegal conduct. I challenge anyone to read 18 U.S. Code 666, which governed much of the Don Siegelman prosecution, and figure out what it means. Documents in that case indicate lawyers on both sides gave up on trying to figure out what the statute means and focused instead on case law.

How many public officials are going to look up case law to determine if they have stepped into criminal territory? Answer: very few.

The "I didn't know the law" excuse doesn't work, however, for Hubbard. The indictment primarily cites Code of Alabama 36-25-5(a), and it's language is not hard to decipher:

Section 36-25-5

Use of official position or office for personal gain.

(a) No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain.

As white-collar statutes go, that is a paragon of clarity--and Hubbard had every reason to know what it says.

That's what makes the following remark from Hubbard, as reported by the Montgomery Advertiser, so disingenuous:

The Auburn Republican said he was being targeted for "shaking up the status quo" in state government after winning control of the Legislature in 2010, and angering those "who liked things as they are."

"Why does the Attorney General's Office think it's a crime to own a business?" Hubbard said during the press conference. "And think it's a crime to do business with anyone you didn't know before you were elected to office?"

The indictment makes no such claim. In count after count, the indictment says Hubbard used his office for personal gain, via his various business interests. And that, if proven in court, is a violation of the law.

Hubbard has given every indication that he intends to fight the charges, and he and high-priced lawyer Mark White might figure out a way to coax a not-guilty verdict from an Alabama jury.

But for now, Hubbard gives the impression of a man who does not understand the charges against him--and who doesn't understand how much trouble he might be in.

Rove and Abramoff helped lay the foundation for the Riley Machine, led by former Governor Bob Riley (2002-2010) and driven largely by his children, Birmingham lawyers Rob Riley and Minda Riley Campbell.

Without the support of Team Riley, Hubbard probably never would have risen to political heights. One publication recently called Hubbard "Riley's second son." Hubbard even named one of his son's "Riley," in honor of the former governor.

Yesterday's indictment provides details about deals Hubbard tried to make with several members of the Riley Machine--including Bob Riley, Minda Riley Campbell, and political consultant Dax Swatek. According to a report at al.com, most of those approached gave Hubbard what he wanted. From Mike Cason's article:

According to the indictment, Hubbard solicited favors from some of Alabama's rich and powerful. They include former Alabama Governor Bob Riley, Business Council of Alabama CEO Billy Canary, Hoar Construction CEO Rob Burton, Great Southern Wood CEO Jimmy Rane, former Sterne Agee CEO James Holbrook, lobbyist Minda Riley Campbell, Harbert Management Corp. vice president Will Brooke and political operative Dax Swatek.

Most gave Hubbard what he wanted, according to the indictment, including major investments into Hubbard's company, Craftmaster Printing.

That raises this question: Did most of these deals amount to illegal "quid pro quos," where there was an agreement for the giver to receive something in return for his gift? If so, both parties in the deals should be subject to prosecution, as happened in the case of former Democratic governor Don Siegelman and former HealthSouth CEO Richard Scrushy.

That probably would be covered by federal bribery law (see 18 U.S. Code 666), but we do not know at this point if the U.S. Department of Justice is involved.

So far, Hubbard is the only major team member to have his mugshot taken. That means the question now about the Lee County grand jury is this: What's next?

If Mike Hubbard proves to be the "big fish" that was caught in the net, not much will have been accomplished. The real big fish--members of the Riley family--are still swimming in Alabama's murky political waters.

Monday, October 20, 2014

An Alabama state judge has ruled that the divorce file of wife-beating federal judge Mark Fuller should, for the most part, be unsealed. That's a step in the right direction, but Fuller hardly is the only white, conservative politico to have his divorce file kept from public view.

In making her ruling last Friday, Montgomery County Circuit Judge Anita Kelly more or less confirmed there never were any lawful grounds for sealing Fuller's divorce case from his first wife. Fuller now stands charged with beating his second wife in an Atlanta hotel room back in August, drawing widespread calls for his resignation or impeachment.

If there were no lawful grounds for sealing the Fuller divorce case, that almost certainly is the case with Jessica Medeiros Garrison's divorce from Lee Garrison, a Tuscaloosa insurance man and chair of the city's school board.

The Garrisons were divorced in October 2009, and records from a subsequent custody action involving their son have remained public. Records from the divorce case itself were sealed, at Jessica Garrison's request, and the Fuller case now stands as evidence that the Garrison case almost certainly should have remained a public record.

In his Facebook coverage of the Mark Fuller wife-beating case, attorney Donald Watkins has said Alabama is ruled by a white, Republican "oligarchy," whose members enjoy certain privileges that most citizens do not. One of the those privileges apparently involves the easy sealing of divorce files that might contain embarrassing or unpleasant information.

Mark Fuller clearly belongs to the oligarchy, and it appears Jessica Garrison holds a comfortable position there as well.

In 2012, a group of independent journalists (including me) moved the Montgomery circuit court to unseal the Fuller divorce file, and that request was denied. It wasn't until the mainstream al.com media conglomerate made a similar request last week that the court decided to pay attention and more or less follow the law.

If Mark Fuller's divorce file is fit for public consumption, surely the same applies to Jessica Medeiros Garrison. We challenge al.com to petition the Tuscaloosa County Circuit Court and demand that the case be unsealed.

The Garrison divorce documents are public records, and they should be treated as such.

Thursday, October 16, 2014

Almost a year before Michael Brown was shot and killed in Ferguson, Missouri, setting off a string of protests that continued over this past weekend, I had my own encounter with a thuggish cop.

Alabama law that is more than 100 years old says a warrant should be properly signed and executed. In my case, courtroom evidence shows there was no warrant at all.

My encounter with a rogue cop happened inside my own home. I don't think I even had a speeding ticket on my record when an Alabama deputy named Chris Blevins entered my home without showing a warrant, stating he had a warrant, or that he intended to arrest me--and then proceeded to knock me down three times and spray me in the face with Mace.

What crime had I allegedly committed. None. An Alabama judge claimed I was in contempt of court, even though I had filed court papers showing I had not been lawfully served with papers in a lawsuit. That meant the court had no jurisdiction over me, and Officer Blevins had no grounds to be in my garage.

What about that case that dates back more than 100 years? It's from 1903 and is styled Oates v. Bullock, 136 Ala. 537, 33 So. 835.Oates is so old that we can't find the full case on the Web. But the gist of Oates can be found in a case styled Kelley v. State, 316 So. 2d 233 (1975), which is more or less from the modern era.

Kelley was about a search warrant, but the text makes it clear that the finding applies to arrest warrants--in fact, the Kelley opinion was based largely on a finding in Oates regarding an arrest warrant. Here is the key section from Kelley:

Returning to matters at hand, the Kelley court then stated the following about the search warrant before it:

Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was unauthorized and illegal.

If an arrest in 1903 was illegal because of an unsigned arrest warrant, it seems clear that a 2013 arrest would be illegal when courtroom evidence shows there was no warrant at all.

What can we learn from all of this? I would submit that all Americans should pay attention to events in Ferguson, Missouri. You never know when you might be victimized by a thuggish cop--and it could happen inside your own home.

Wednesday, October 15, 2014

Federal judge Mark Fuller, who is charged with beating his wife in an Atlanta hotel room, now faces an independent investigation into the possibility that he illegally obtained prescription drugs.

That is from veteran Alabama lawyer and businessman Donald Watkins, via posts on his Facebook page. Watkins, chairman and CEO of Masada Resource Group LLC in Birmingham, says he has a team of investigators working on the Fuller story. The results of their work are "mind boggling," Watkins says, and he plans to develop a criminal case against Fuller and his drug supplier.

Watkins says his reporting on the Fuller case, plus his posts about an overtime-pay scandal involving Gov. Robert Bentley and a state trooper, have led to threats against his family.

Fuller's apparent abuse of prescription drugs was an issue in his 2012 divorce case. Watkins is taking a closer look at the issue, and this is from one of his recent posts:

While the Alabama Media Group is fighting to get access to Mark Fuller's sealed divorce records, and while the 11th Circuit Court of Appeals is trying to determine whether Fuller beat his wife Kelli on August 9th, I am tracking down the person who supplied Fuller with illegal prescription drugs.

As I reported yesterday, we are making substantial progress with our ongoing Fuller investigation. The progress has been so good that I am starting to get threats to me and my family.

We are verifying the source and location of the drug supply. This investigation has taken us all of the way back to Fuller's hometown of Enterprise. The leads are pouring in to us now. They are appear to be very credible and corroborated by other independent evidence.

We are about to blow this Mark Fuller sex, illegal prescription drugs, alcohol abuse, and wife-beating scandal wide open. The truth about all of this is simply mind-boggling. Stay tuned.

How serious could this get? Watkins provides insight in a comment to his post:

Facebook friends, nobody is big enough to crush truth on a permanent basis. They can stall it momentarily, but they cannot suppress it forever. I may have found a possible second source for the illegal drugs. My team is on the case. This part of our investigation may be bigger than the wife-beating incident. Dispensing controlled substances/narcotics without a prescription is a criminal offense. Asking for these drugs on an illegal basis makes the person requesting the drugs equally guilty. I am working to develop a criminal case for knowingly participating in a scheme to acquire and use controlled substances/narcotics without a prescription.

Someone apparently is not thrilled with Watkins' investigative efforts. Reports Watkins, in a separate Facebook post:

At 9:50 p.m. EST Sunday night, I received a threat from someone on Facebook posing as "Gary Globalmiddleman". This person is not one of my Facebook friends. The threat came through my private message inbox feature. It stated, "worry about your own family. stop friending people just for shock value".

Judge Mark Fuller(via Phil Fleming)

I obviously struck a nerve with my posts yesterday. Based upon my investigative experience and the many death threats I have received during my 41-year legal career in Alabama, this particular threat came from either Robert Bentley's political camp, or one of Mark Fuller's die-hard supporters. For the past two months, I have placed both men under heightened scrutiny and what the public has seen is truly shocking and disgusting.

Watkins apparently has the resources to deal effectively with those who might issue threats:

My security team has locked the electronic footprint on this message. Whoever sent it to me overlooked one critical electronic tracer. We will identify, find, and deal with the person who made this threat.

For the record, I do not respond to threats. I work all over the globe, and some of my work is performed in really tough places. I have an excellent security team, including the best information technology experts on the planet. The question is not whether this person will be found, but when this event will occur.

Meanwhile, I will continue to report the truth about Bentley and Fuller. These men are twins of deception. I did not make these men do bad things. I only shined the spotlight on their despicable conduct. Whichever one of them authorized the threat against me and my family is a real criminal.

The file of Fuller's divorce from his first wife includes questions about domestic violence and drug abuse, al.com writes in an editorial, and that information should be available to Congress if it initiates impeachment proceedings against Fuller.

That's fine as far as it goes, but al.com leaves out a critical piece of information--it and other mainstream news outlets have done a miserable job of covering the Fuller story. In fact, nontraditional news sites, including our Legal Schnauzer blog, have done almost all of the heavy lifting.

Al.com, with its major operations in Birmingham, Mobile, and Huntsville, now is taking the moral high road on the Fuller story. But when news of Fuller's divorce broke in 2012, al.com was nowhere to be found. We did a search at al.com on"Mark Fuller divorce 2012" and found nothing on the case. We did a search for Fuller's first wife, "Lisa Boyd Fuller," and found nothing other than a brief reference to her in the new editorial.

How late is al.com to the party? It isn't even the first news organization to ask for the divorce file to be unsealed. Andrew Kreig, director of the D.C.-based Justice Integrity Project, led an effort to do that in May 2012. Bob Martin, publisher of the Montgomery Independent, and I lent our support to Kreig's effort, and you can read the petition here. Montgomery County Circuit Judge Anita Kelly, to whom al.com now addresses its request, did not unseal the file then.

Consider these ironic words from al.com's editorial:

Court documents available before the record was sealed give us insight into what the record contains.

We know that Fuller's wife asked him to confirm or deny whether he had physically abused her.

We know that she subpoenaed records from at least six pharmacies, asking each of them to list what prescriptions they had filled for Fuller.

How does al.com know that? It's because of reporting from more than two years ago in the nontraditional press. Does al.com make any mention of that? Nope.

Bob Martin, of the Montgomery Independent,broke the divorce story in his weekly print publication on May 16, 2012. We picked up on the story at Legal Schnauzer the next day and wound up writing four posts on the subject. We also published five documents from the case file to the Scribd online document-sharing site, including documents that strongly hinted at domestic violence and drug and alcohol abuse. (See the Request for Admissions at the end of this post.)

Al.com is correct to state that Fuller's 2012 divorce case shines important light on the charges the judge now faces. It also is correct to state that the divorce file should be made available to Congress in the event of impeachment proceedings. But al.com should be honest enough to admit that it did nothing to inform the public about ugliness in Mark Fuller's personal life when it had the chance in 2012.

Does the nontraditional press matter in the United States of 2014. The Mark Fuller story provides evidence that the answer is a resounding yes.

Thursday, October 9, 2014

Roughly two months have passed since a white police officer shot and killed an unarmed black teen-ager named Michael Brown in Ferguson, Missouri, sparking weeks of protests in the St. Louis suburb. Tensions remain high in Ferguson, with four days of protests planned for this weekend, over the Columbus Day holiday.

The shooting of Michael Brown has focused national attention on questionable police actions in public places. It also has shined light on law enforcement's increasing use of military-style weaponry in the civilian environment.

These clearly are valid concerns, but my own experience indicates scrutiny of police should go even further. Almost one year ago, I was arrested (for the first time in my life) in a private place, inside my own garage. It was for alleged civil contempt of court and was not a criminal matter, and the arresting officer entered my home without showing a warrant or saying he had a warrant. In fact, Shelby County, Alabama, officer Chris Blevins did not even tell me he was there to arrest me until he had knocked me to a concrete floor three times and Maced me in the face.

What does this mean? Long-standing Alabama law holds that an unsigned search warrant is "void on its face" and any resulting search is illegal under the Fourth Amendment to the U.S. Constitution. Evidence in my case suggests there was no search warrant at all, so that would appear to make Blevins' entry into my home illegal.

This all involves the Fourth-Amendment right to be free from unlawful search and seizure, and an Alabama stolen-property case shows it's important for warrants to exist and be handled properly.

The case dates to 1975, when an Alabama woman saw her arrest in a copper-theft case overturned because a search warrant was unsigned. At first glance, that case might seem to have little in common with my arrest on civil-contempt charges growing from a preliminary injunction in a defamation case. After all, analysts from all sides of the political spectrum seem to agree that the injunction in my case represents an unlawful prior restraint under the First Amendment.

Such weighty matters were not present in Effie Kelley's copper-theft case; it seemed to be a relatively straightforward criminal matter. But Kelley saw her conviction overturned because a municipal judge had not signed the search warrant. That's where Kelley v. State, 316 So. 2d 233 (1975) and the Legal Schnauzer case seem to intersect.

The Alabama Court of Criminal Appeals found the lack of a signature made the search warrant "void on its face," making the search "unauthorized and illegal."

My case involved an arrest warrant, not a search warrant. But the Kelley opinion makes clear that the same principle applies to both kinds of warrants. That notion dates to at least 1903, and we will take a closer look at it in an upcoming post.

Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was unauthorized and illegal. A judgment is void on its face when it only requires an inspection of the judgment roll to demonstrate its invalidity. . . The same is true of a search warrant when it shows on its face that it lacks the signature of any magistrate, such being the only authorized officer to put life in the paper.

Did any authorized officer "put life" in an arrest warrant for my case? Well, as we showed in previous post, courtroom evidence indicates there was no warrant in my case at all. Video played in court showed that Deputy Blevins never showed me a warrant, never told me he had a warrant, and never said I was under arrest until he had knocked me to a concrete floor three times and sprayed me in the face with Mace.

Based on evidence in court, there was no warrant in my case, making my arrest "unauthorized and illegal."

Unlike Michael Brown, I was fortunate to live through my encounter with rogue police officers. But I still have nightmares about it--and I doubt that they ever will go away.

Perhaps only Taylor can answer that question at this point. But a close look at his complaint raises serious concerns.

Taylor appears to borrow a trick from Birmingham attorney Bill Baxley, who along with Rob Riley, represents Deputy Attorney General and Team Riley member Sonny Reagan in an ongoing Lee County grand-jury investigation. The probe focuses on House Speaker Mike Hubbard (R-Auburn) and reportedly could involve a take down of former Governor Bob Riley's political machine.

So what about those tricks Taylor might have picked up from Bill Baxley? In his complaint, Taylor lists fictitious defendants A, B, and C and refers to them as "those persons, firms, associations, or corporations unknown to Plaintiff who funded, fomented, directed, or, jointly with the named Defendants, maliciously published, or caused to be published, the false and defamatory article complained of herein, each of whom will, upon discovery, be substituted by amendment pursuant to Rule 9(h), Alabama Rules of Civil Procedure."

That language is almost identical to that Baxley used in a lawsuit against me, on behalf of former Luther Strange campaign aide Jessica Medeiros Garrison. What does it mean?

It means Taylor wants to use the discovery process to learn the identity of APR's news sources and its financial supporters. He then wants to add those individuals and entities to his lawsuit.

Translation: As a public official subject to the high bar of "reckless disregard," Taylor might not have a winnable defamation case against APR's Bill and Susan Britt. But he might be able to sue, and essentially terrorize, the Britt's sources and backers. That, in an indirect way, could chill the Web site's investigative reporting.

If that proves to be the real goal of Taylor's lawsuit, he would not be the first Riley Machine member to file a defamation lawsuit with an ulterior purpose. As we showed in a post yesterday, Rob Riley's lawsuit that led to my unlawful incarceration roughly one year ago bore no resemblance to a regular defamation lawsuit. That strongly suggests it was filed with some other purpose in mind.

Most alarmingly, Riley did not seek a jury trial, which a long line of case law says is required in defamation cases. That means Riley wanted his case to go only before Judge Claud Neilson and not a group of his fellow citizens.

Taylor deserves credit for fashioning a complaint that at least looks like a legitimate defamation case. But when you consider the timing of his lawsuit, so soon after APR's breaking stories about Sonny Reagan and the Riley Machine, and his apparent desire to get at the Web site's sources and backers . . . well, it raises questions about what's really going on.

Can the Britts do anything about it, other than defend themselves? I think the answer is yes. I would suggest they consider a countersuit for abuse of process. That is a tort that involves several elements, but it mainly is designed to fight lawsuits filed with an ulterior purpose.

If the Britts were to file a counterclaim for abuse of process, I suspect it might give Bryan Taylor considerable pause. It would give the Britts a chance to learn who, if anyone, might be backing Bryan Taylor's lawsuit. Valid countersuits have a way of "turning the tables."

Here is a question for readers to ponder: If Rob Riley did not want his case to go before a jury, and Bryan Taylor is interested mainly in APR's sources and backers, what does that say about the quality of their defamation claims?

Tuesday, October 7, 2014

A lawsuit from State Sen. Bryan Taylor (R-Prattville) against Alabama Political Reporter(APR) appears, at first glance, to be a legitimate complaint for defamation.

But when you consider that Taylor is a high-profile ally of former Governor Bob Riley, and his lawsuit came less than 10 days after APR broke multiple stories about the possibility that the Riley Machine will be targeted in a Lee County grand-jury investigation, a reasonable person might ask: Is the Taylor lawsuit more about intimidation than defamation?

That question especially resonates when you consider that, as a public official, Taylor has a tiny chance of overcoming the "reckless disregard" standard he would have to reach in order to win a defamation lawsuit. The question resonates even more when you consider that Taylor might be borrowing a page from Rob Riley, a Birmingham attorney and the former governor's son.

I know from firsthand experience that Rob Riley has, on at least one occasion, filed a lawsuit that wasn't what it seemed. In fact, it's been almost one year since Riley's defamation lawsuit caused me to be unlawfully arrested and incarcerated for five months in the Shelby County Jail. I became the only imprisoned journalist in the western hemisphere for 2013, and analysts from both the left and right roundly criticized Judge Claud Neilson's actions as wildly unlawful.

Rob Riley, however, has mostly escaped the criticism he deserves for filing a lawsuit that bears little resemblance to an actual defamation complaint. First, Riley asked that the case be sealed, contrary to Alabama law. Second, he repeatedly asked the court for remedies that are not authorized by law. Third, Neilson behaved as if he was Riley's nearest cousin, violating procedural law, longstanding case law, and simple due process--favoring Riley at every turn.

All of that suggests the Riley lawsuit, from the outset, was about incarceration, not defamation. He also sought to have my wife arrested, even though at the time of the lawsuit, she had nothing to do with this blog, which was the focus of Riley's complaint.

Is Bryan Taylor using a similar form of misdirection and intimidation with his complaint against APR? Perhaps only Taylor knows for sure at this point, but he clearly has powerful connections to Rob Riley. And my case shows that Rob Riley has no qualms about abusing the legal process in an effort to chill online reporting.

How do we know? Let's consider a few elements of Riley's claim--and contrast them with actual defamation law:

* Riley immediately asked for a temporary restraining order (TRO), followed by a preliminary injunction--A long line of state and U.S. Supreme Court cases show that TRO's and preliminary injunctions are barred as unconstitutional prior restraints in defamation cases. One of the most recent examples is a Virginia case styled Dietz v. Perez, which involved a woman writing a negative review about a construction contractor on a couple of Web forums. The foundational case on the subject is a 1931 U.S. Supreme Court case styled Near v. Minnesota, which was built on roughly 200 years of First Amendment law.

* Riley asked for a judge to rule on the case, not a jury--The law holds that the First Amendment enjoys an exalted place in our democracy, and such cases are to be decided by a jury. To allow bench trials on such matters is to invite censorship by a single judge. Juries are deemed necessary to protect the cherished right to free speech. This principle is perhaps best discussed in Bernard v. Gulf Oil Co., 619 F. 2d 459 (Fifth Circuit, 1980).

Rob Riley

Rob Riley sought an unlawful TRO and preliminary injunction, he did not seek a trial, and he did not ask for a jury. All of this violates clear law, and indicates his lawsuit was really about something other than defamation. In fact, his case never even looked like a defamation claim.

As the victim of Riley's lawsuit, I have strong feelings on this subject. It involved an unlawful request for a preliminary injunction, plus an accelerated court process that almost ensured I was going to be held in contempt of court. That provided the excuse to have me arrested--and I'm convinced that was the suit's primary purpose. It also provided an excuse to level some $34,000 in unlawful sanctions against my wife and me, another example of the financial terrorism for which certain Southern Republicans are known.

A number of online analysts, who all say Neilson's rulings were unlawful, have questioned my handling of the case--that I should have addressed the preliminary injunction more directly, that I should have hired a lawyer, etc. (Never mind that I was arrested before I could address the injunction, plus I talked to two lawyers in jail, and my wife tried mightily to seek legal representation for me.) I'm convinced I was going to be arrested, no matter what I did.

Bryan Taylor, to his credit, has fashioned a defamation complaint against APR that at least has the appearance of legitimacy. He does not ask for a preliminary injunction, and he does ask for a jury trial. He does request injunctive relief near the end of the complaint, but that would be lawful if it were to come after a full adjudication on the merits--if a jury were to find the APR article defamatory, with writers Bill and Susan Britt having an opportunity for appellate review.

So what might be Taylor's ulterior motive? Is he interested in a full adjudication, based on the facts and the law? I doubt it, and I will tell you why in an upcoming post.

By "certain Alabama Republicans," we are referring to members of the "Riley Machine," headed by former Governor Bob Riley (2002-10). The question in our lead paragraph has special resonance here at Legal Schnauzer because Rob Riley, a Birmingham attorney and the former governor's son, filed a dubious defamation lawsuit against my wife and me last October, causing me to be unlawfully incarcerated for five months.

I doubt that APR's Bill and Susan Britt will wind up in jail, in part because my case received ample coverage in both the online and mainstream press, giving the United States the embarrassing distinction of being the only country in the western hemisphere to incarcerate a journalist in 2013. Plus, it might turn out that Taylor has a meritorious claim. But on initial review, it seems to emit a foul odor reminiscent of the one that came from Rob Riley's lawsuit.

First, consider the timing of Taylor's complaint. He filed it on September 26 in Etowah County Circuit Court. That's exactly one week after APR reported that Deputy Attorney General Sonny Reagan, another member of Team Riley, had been charged with leaking information from the Lee County grand jury that is investigating fellow team member and House Speaker Mike Hubbard. It was nine days after APR reported that Reagan had been forced to testify before the grand jury and wound up asserting the Fifth Amendment right not to incriminate himself--and documents associated with that proceeding indicated the Riley Machine itself was among the investigation's targets.

Second, consider that Taylor is a public official and has to clear an extremely high hurdle to win a defamation case. Under the New York Times v. Sullivan test, Taylor has to prove "actual malice," meaning the Britts knew information they printed about him was false or they exhibited "reckless disregard" to its truth or falsity.

Third, consider that the article alleged to be defamatory was almost as critical of the Riley administration as it was of Taylor. Here is a sampling:

According to Riley’s January 2007 press statement, Taylor was hired by the Riley administration as a personal aide in February 2006. However, his receipt of campaign funds from the Riley campaign paint a different picture. Taylor was paid $684.61 bi-weekly by the Riley campaign. These payments in this amount began on March 31, 2006 and continued until December 29, 2006. Taylor also received additional payments from the campaign during this time, including $925.16 in March 2006, $518.00 in July 2006, $351.94 in October 2006 and $2,100.00 in December 2006 days before the governor’s office announced his promotion to policy director. . . .

The campaign expenditures from Riley present another issue for Taylor that is clearly improper, unethical, and potentially criminal.

During the same time Taylor was a paid staffer of the Riley campaign, he was also listed numerous times as a passenger on an aircraft owned by the State of Alabama. Flight logs maintained by the State show that Taylor was on board a state aircraft more than 90 times in 2006. Only 7 of the 90 flights were reported to have been reimbursed to the State, according to the flight logs. These logs also indicate that many of the flights included campaign events for Bob Riley, and most were never noted to have been reimbursed to the State by the campaign.

Then we have this heavy-duty kicker, focusing on Taylor's former employer, the Bradley Arant law firm of Birmingham:

All told, the Riley administration paid Taylor’s former employers $2,250,000. Bradley Arant received $6,000,000 in state contracts during that period. How much influence Taylor wielded over these decisions is not fully known. However, his inconsistent statement of facts coupled with the Riley administration funneling millions to his former employer raises more than a few questions about Taylor’s ability to head Alabama’s Ethics Commission.

Some are starting to suggest that Taylor’s behavior in helping to direct Bob Riley’s political patronage machine calls into question his fitness to serve in any capacity charged with overseeing ethical conduct by our public officials.

The APR article appears to be well researched, so it's hard to see how Taylor could show the kind of "reckless disregard" for the truth that is needed to win a defamation case.

But maybe that's not the point of his lawsuit; maybe it's more about intimidation than defamation. Maybe it's designed as a weapon to chill APR's reporting about Sonny Reagan and the Lee County investigation.

We can show numerous signs that Rob Riley's claim against me was not a standard defamation lawsuit. We also see similarities between Taylor's complaint and one Birmingham lawyer Bill Baxley drew up against me, signs that Taylor is after information about APR's supporters and sources more than anything else.

Who, by the way, served as Sonny Reagan's lawyers when he tried to escape testifying before the Lee County grand jury? It was none other than Rob Riley and Bill Baxley.

With his lawsuit against APR, is Bryan Taylor pulling from the Rob Riley/Bill Baxley playbook? We will address that question and more in an upcoming post.

Thursday, October 2, 2014

An Alabama state senator has filed a lawsuit against a Montgomery-based news organization, claiming the Web site published "false and defamatory" information about him.

Bryan Taylor (R-Prattville) claims the Alabama Political Reporter (APR) knowingly published a false article that damaged his reputation and hurt his political career. Taylor is a long-time ally of former Governor Bob Riley, and APR has broken a number of stories about a Lee County grand-jury investigation that might "bring down the Riley machine" and one of its most prominent members, House Speaker Mike Hubbard.

Taylor alleges that reports on the Web site cost him a position on the Alabama Ethics Commission, according to a report at Courthouse News Service (CSN). (See complaint at the end of this post.)From the CSN report:

In a complaint filed in the Etowah County (Ala.) Circuit Court, Bryan Taylor claims the blog and its editors, Bill and Susan Britt, published an article entitled "Shadowy Conduct of the Man Who Would Be Ethics Chief," with the "conscious and malicious objective" of scuttling his potential candidacy for director of the Alabama Ethics Commission.

Taylor, who is also a practicing attorney and is representing himself in the litigation, claims the article contains "a number of maliciously false and defamatory statements, assertions, or imputations," which the article bills as "facts" about his conduct in public service.

Not surprisingly, Taylor's complaint focuses on Bob Riley:

As detailed in his complaint, Taylor is most upset about the article's depiction of his service to former Ala. Gov. Bob Riley.

Among what Taylor describes as the "false assertions" included in the blog post are that his conduct while working as an aide to Riley was "clearly improper, unethical, and potentially criminal," because he "received additional compensation from the governor's re-election campaign committee" at the same time that he was on the government payroll.

Taylor further contends the post maligned him by insinuating that he refused to file a mandatory "Statement of Economic Interests" with the state's Ethics Commission over the course of the five years he worked for the governor, and by further claiming that he lied when he told a radio interviewer he practiced law before joining Riley's staff. The blog post claimed he wasn't admitted to the Alabama State bar until seven months after the governor hired him.

Taylor accuses APR of practicing sloppy journalism and being driven by money:

Taylor contends these statements are the result of the blog being overly influenced by political advertisers and that the blog routinely published "paid or otherwise compensated" political content "without labeling it as advertising, for the purpose of manipulating public opinion."

He claims the blog's editors "consciously or deliberately" failed to contact him prior to publishing the article, "and thus deprived Taylor of the opportunity to correct Defendants' falsehoods before they were published."

He also claims the editors deliberately avoided discovering or otherwise determining whether the statements contained in the article were true or false.

If the water contamination, air pollution, and health conditions associated with natural-gas fracking come to your community someday, you might be able to "thank" the Rollins family in part.

The Atlanta-based portion of the Rollins clan--another segment of the family is based mostly in Delaware and the Carolinas--is best known for Orkin Pest Control. But another firm under the Rollins empire is called RPC Inc., which is an oil and gas services company.

Fracking has paid off handsomely for the Rollins family, especially for brothers Gary and Randall Rollins, who serve as the company's chief executives. Before fracking came along, the brothers were comfortably in the millionaire class. But now they are worth about $2.7 billion each, ranking No. 225 on the Forbes 400.

What fueled the dramatic upswing in the bottom line? Here's how O'Connor explains it:

Even if their kids had troubles staying productive, Gary and Randall were masters of “meaningful pursuits,” using the steady money from killing vermin to bankroll an oil-and-gas-services holding company called RPC. In 1984 they spun it off from Rollins with a market cap of $52 million. For a long time it was just another good, solid, grimy business–a moneymaker that rode out the inevitable boom-bust cycles of three decades in the energy business.

Then came the fracking revolution, exploding Gary and Randall’s independent wealth far beyond the rest of the family’s. Between 2001 and 2013 revenues jumped from $265 million to $1.86 billion, 55% of which stems from fracking-related activities. Today RPC boasts a market cap hovering above $4.6 billion. Gary and Randall’s combined share is worth $3 billion. Much of this stock is held in yet more Rollins family holding companies and trusts; the two brothers control every last dollar.

Pressure Pumping--55% of total revenues, RPC's largest service line. The largest and fastest-growing service line at RPC, this service line provides hydraulic fracturing and acid treatment services, which serve to increase production in existing land wells. This service line is increasingly important in the growing percentage of service-intensive horizontal and directional wells.

RPC and Cudd have been to court over issues related to fracking. One well-known case, Scoggin v. Cudd Pumping Services, et al,, involved work in the Fayetteville Shale of northern Arkansas. Here is how one legal report summarized claims in the lawsuit:

In August of 2011, Defendants hydraulically fractured three natural gas wells which were located
approximately 250 feet from the Plaintiffs’ home. Plaintiffs allege that, during the fracking
process, large amounts of benzene, zylene, and methylene chloride were released into the
environment, causing “dense clouds of a toxic mixture of atomized chemicals…” Air quality
measurements taken in the Plaintiffs’ home revealed toxic levels of the chemicals.

Fracking within 250 feet of a home? Doesn't sound like RPB makes the most thoughtful of neighbors.

The two sides came to a joint stipulation for voluntary dismissal without prejudice. Our guess is that some sort of settlement was reached.

The lawsuit is one of several that have recently been filed in federal court against natural-gas companies accusing them of harming people in the Fayetteville Shale. Other suits contend that fracking operations are contaminating groundwater and devaluing homes.

The shale-gas industry has boomed in recent years in the Fayetteville Shale in north-central Arkansas, jumping from only a handful of wells in 2005 to more than 3,000 this year.

Fracking litigation might be a hassle for RPC, but it doesn't seem to be putting a dent in the Rollins family bottom line.

Ted Rollins has major business interests in Alabama, with student-housing complexes already built or going up on five campuses in the state--at South Alabama, Troy, Jacksonville State, Auburn, and the University of Alabama.

The Rollins family has two primary branches, with Ted belonging to what might be called the "Delaware/Carolina" branch, descending from Ted's father, John Rollins Sr. The other branch mainly is in Georgia, descending from Wayne Rollins, John Sr.'s brother.

At the heart of the current controversy are Gary and Randall Rollins, Wayne's sons who head up Rollins Inc. (parent company of Orkin) and are worth about $2.7 billion each, ranking No. 225 on the Forbes 400

Forbes focuses almost entirely on the Georgia branch and its struggles over trust funds, divorces, and related ugliness. The article does not mention Ted Rollins by name, making only reference to him as a cousin to Gary and Randall,

We have reported on the trust-fund controversy in several posts, and Forbes Reporter Clare O'Connor provides important new details, producing some top-notch journalism along the way. Here is how she describes issues swirling around the Rollins family in Atlanta:

Orkin, and the nine related extermination companies housed under Rollins Inc., remains the leading company in pest control: rats, roaches and their ilk are as perennial in this world as sticky Atlanta summers. But for the Rollins family, the party is over.

Glen has sued his father, Gary, CEO of Rollins Inc., as well as his uncle Randall, company chairman. Glen’s three siblings also joined in, claiming they were being denied their rightful cash allocations–though Randall’s five kids stuck by their dad and Gary. Ruthie apparently took her kids’ side in the money fight, filing for divorce from Gary, after 45 years, at almost precisely the same time. And then Glen and Danielle began their own ugly divorce. The cumulative effect–father vs. sons, wives vs. husbands, cousins vs. cousins–makes this one of the nastiest intergenerational battles ever to take place among members of The Forbes 400 (Gary and Randall rank 225th on the list, at $2.7 billion each). “It’s like a Greek tragedy,” says Danielle.

The Rollins story mirrors the Liesel Pritzker story, with a few extra oddball twists thrown in. In 2000, Gary and Randall set up eligibility requirements that their children had to meet in order to receive trust proceeds. Chief among the requirements was that the children be engaged in "meaningful pursuits."

The patriarchs decided to up the ante in 2010. Writes O'Connor:

IN 2010 GARY AND RANDALL, facing a generation that grew up rudderless, tried to offset any issues in how they were raised with bureaucracy–and policing. Keen to measure how carefully their kids were adhering to the eligibility requirements they’d set up a decade earlier, they constructed yet another formal mechanism, something called the Rollins Perpetual Management Trust. It was intended, say court documents, “to serve as the vehicle through which the governance of the family and its assets is established in perpetuity.”

Critically, it “provided for a ‘monitoring program’ that permitted Gary and Randall … to hire private investigators to follow the plaintiffs around, conduct credit checks and drug tests, and review their medical records.” Gary and Randall sought to install themselves as joint trustees, forcing their kids to agree to the new terms or lose their annual payments. It was viewed as a declaration of war.

What about the sex-addiction component to the story. That's where Gary's son, Glen, enters the picture. He went through a nasty divorce from his socialite wife, Danielle:

But there were other reasons Glen may not have wanted to have private investigators nosing around. While for most of Atlanta business society he was still the golden-boy corporate chieftain with a steady hand on Orkin’s tiller, in truth his personal life was an utter disaster. He was struggling with a sex addiction that included a rehabilitative stint at the same place golfer Tiger Woods was treated. “I got some help for a tremendously stressful period,” says Glen. “I had a lot to heal from.” His marriage was unraveling. Glen and Danielle’s Buckhead estate, Boxwood, appeared in a spread in the August 2010 edition of Town and Country. Photos show the lavish, tasteful interiors, newly revamped by high-profile interior designer Miles Redd. In one shot the five family members smile from inside a black Mercedes convertible.

That was a last glimpse at a life already passing from view. Days later Glen and his siblings filed their suit. His mom, Ruthie, filed for divorce from his father two days later, citing “no hope for reconciliation.” Glen was fired from Orkin soon after and cut off from the trust. Over the past four years the Rollins case moved in and out of Atlanta courtrooms through months of hearings, an overturned judgment by the Georgia Supreme Court and two appeals. One of the at least eight lawyers on the case has already made upwards of $1 million from legal fees, says a relative. The kind of sickening numbers that make an entrepreneur want to give it all away.

“It’s like dominos,” says Glen’s ex-wife, Danielle. “My children have lost grandparents, cousins. Their heritage.”

One lawyer already has made around $1 million on the case? It's not clear who will be the losers in the Rollins controversy. But it looks like lawyers will be the winners.